People v. Ellis, 02CA2320.

• Decision Date: 23 March 2006
• Docket Number: No. 02CA2320.,02CA2320.
• Citation: 148 P.3d 205
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Mark Stephen ELLIS, Defendant-Appellant.
• Court: Colorado Court of Appeals

148 P.3d 205

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Mark Stephen ELLIS, Defendant-Appellant.

No. 02CA2320.

Colorado Court of Appeals, Div. III.

March 23, 2006.

Rehearing Denied May 11, 2006.

Certiorari Denied November 27, 2006.^*

COPYRIGHT MATERIAL OMITTED

John W. Suthers, Attorney General, Cheryl Hone, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

Patrick J. Mulligan, Denver, Colorado, for Defendant-Appellant.

TAUBMAN, J.

Defendant, Mark Stephen Ellis, appeals the judgment of conviction entered on a jury verdict finding him guilty of four counts of sexual assault on a child-position of trust, one count of sexual assault on a child-pattern, and one count of child abuse. We affirm.

Ellis was accused of sexually abusing his adopted daughter, V.E., beginning when she was seven years old.

Police searched Ellis's house and seized all the blankets that had been on V.E.'s bed. The Colorado Bureau of Investigation found semen stains on three of V.E.'s blankets and concluded that the DNA on the stains matched Ellis's DNA and that of his son.

Before the jury trial in August 2002, Ellis's trial counsel waived the recording of the entire voir dire proceedings. Ellis was convicted as charged and was later sentenced to fifteen years to life in prison.

On appeal, Ellis filed a motion for limited remand to reconstruct the record of voir dire proceedings, which was granted by this court. In March 2004, the trial court held a hearing to reconstruct the record of voir dire proceedings and reconstructed that part of the record, and subsequently, the appeal was recertified.

I. Reconstruction of the Record

Ellis contends that his conviction must be reversed because the record of jury selection proceedings could not be fully reconstructed so that we may determine whether the trial court properly denied a challenge for cause to a juror with a prior felony conviction. We disagree.

To obtain relief on a substantive or procedural due process claim arising from an incomplete record, a defendant must demonstrate specific prejudice resulting from the state of that record. People v. Rodriguez, 914 P.2d 230 (Colo.1996). The appropriate remedy for prejudice allegedly suffered by a defendant as a result of an incomplete trial record is to remand the case to the trial court for a hearing to reconstruct the record. People v. Rodriguez, supra.

A reconstructed record is sufficient for appellate review if it contains enough information to make the defendant's argument ascertainable. See People v. Jackson, 98 P.3d 940, 943 (Colo.App.2004).

Ellis notes that a court generally must consider the entire voir dire examination of a juror when reviewing a denial of a challenge for cause. See People v. Luman, 994 P.2d 432 (Colo.App.1999). Therefore, he contends that he has been prejudiced by the trial court's incomplete reconstruction of the record because we will be unable to determine whether the trial court properly denied his challenge for cause. We disagree.

Here, the trial court was able to reconstruct enough of the record to determine that the juror in question was, in fact, a convicted felon and that she was not on her county's voter registration list. The trial court also determined that defense counsel passed the jury panel for cause, but during or after exercising his peremptory challenges, and before the jury was sworn, defense counsel challenged the juror in question for cause. The trial court then rejected the challenge for cause on the merits. Therefore, the partially reconstructed record is sufficient to permit appellate review of Ellis's argument that the juror should have been disqualified based on those facts. Accordingly, that the voir dire proceedings were not fully reconstructed does not constitute reversible error.

II. Challenge for Cause

Ellis contends that the trial court erred in denying his challenge for cause to a convicted felon who sat on the jury. He argues that the trial court violated his right to a fair trial and equal protection because convicted felons may not serve on a jury and because the juror's name was not on her county's voter registration list. We disagree.

A.

The Due Process Clauses of the United States and Colorado Constitutions guarantee every criminal defendant the fundamental right to a fair trial. Morrison v. People, 19 P.3d 668 (Colo.2000). An impartial jury is an essential element of the constitutional right to a fair trial. Morrison v. People, supra. A defendant's right to an impartial jury is violated if the trial court does not remove a juror who is biased against the defendant. Nailor v. People, 200 Colo. 30, 612 P.2d 79 (1980).

Two forms of bias may exist in potential jurors — implied and actual bias. People v. Lefebre, 5 P.3d 295 (Colo.2000). Implied bias, on the one hand, arises from external factors set forth in § 16-10-103(1), C.R.S. 2005, and is not rooted in what the juror thinks about matters related to the case, but rather in his or her relationships or circumstances. See also Crim. P. 24(b)(2). An impliedly biased juror is not susceptible to rehabilitation through further questioning because implied bias, once established, cannot be ameliorated by the juror's assurances that he or she can nonetheless be fair. People v. Lefebre, supra.

Actual bias, on the other hand, is a state of mind that prevents a juror from deciding a case impartially and without prejudice to a substantial right of one of the parties. Actual bias encompasses beliefs grounded in personal knowledge or a personal relationship, as well as beliefs grounded in the juror's feelings regarding the race, religion, and ethnic or other group to which the defendant belongs. A potential juror who exhibits actual bias is not automatically disqualified from serving; he or she may sit on the jury if he or she agrees to set aside any preconceived notions and make a decision based on the evidence and the court's instructions. People v. Lefebre, supra.

We will overturn a trial court's decision concerning a challenge for cause only upon an affirmative showing that the trial court abused its discretion. Morrison v. People, supra.

A trial court's failure to grant a valid challenge for cause "requires retrial only if the defendant used a peremptory challenge to excuse the prospective juror and then exercised all available peremptory challenges." Ma v. People, 121 P.3d 205, 210 (Colo.2005). However, a defendant may obtain a retrial when the trial court denies a valid challenge for cause after the defendant has used all his or her peremptory challenges. Ma v. People, supra.

Here, defendant challenged the juror with the felony conviction after he had exercised all his peremptory challenges, according to an affidavit from his trial attorney.

Prior to the repeal and reenactment of the Colorado Uniform Jury Selection and Service Act in 1989, a convicted felon was not allowed to serve on a jury, unless his or her right to vote had been restored. Colo. Sess. Laws 1971, ch. 215, § 78-1-8(2)(e) at 872; People v. Binkley, 687 P.2d 480 (Colo.App.1984), aff'd, 716 P.2d 1111 (Colo.1986).

The current and applicable version of the act no longer disqualifies convicted felons whose voting rights have not been restored from serving on a jury. Section 13-71-105(1), C.R.S.2005, now establishes the basic qualifications for juror service:

Any person who is a United States citizen and resides in a county or lives in such county more than fifty percent of the time, whether or not registered to vote, shall be qualified to serve as a trial or grand juror in such county. Citizenship and residency status on the date that the jury service is to be performed shall control.

(Emphasis added.) Section 13-71-105(2), C.R.S.2005, states that a prospective trial or grand juror shall be disqualified based on the following grounds:

(a) Being under the age of eighteen;

(b) Inability to read, speak, and understand the English language;

(c) Inability, by reason of a physical or mental disability, to render satisfactory jury service. . . .

(d) Sole responsibility for the daily care of a permanently disabled person . . . .

(e) Residence outside of the county with no intention of returning . . . .

(f) Selection and service as an impaneled trial or grand juror . . . within the preceding twelve months or being scheduled for juror service within the next twelve months. . . .

(g) Appearance as a prospective juror in state court in accordance with the provisions of section 13-71-120 within the current calendar year. . . .

Section 13-71-105(3), C.R.S.2005, states: "A prospective grand juror shall be disqualified if he or she has previously been convicted of a felony in this state, any other state, the United States, or any territory under the jurisdiction of the United States" (emphasis added).

When the General Assembly amends a statute, courts must presume that it intended to change the law. People v. Covington, 19 P.3d 15 (Colo.2001).

Thus, the current act no longer assumes that convicted felons hold an implied bias based on their circumstances and allows them to serve as trial jurors. Section 13-71-105(2) does not include felony convictions as a ground for disqualifying a potential juror. Moreover, § 13-71-105(3), the only section of the juror qualification statute that addresses felony convictions, specifically states that only prospective grand jurors are subject to disqualification for prior felony convictions.

To the extent that Ellis argues that the juror with a felony conviction may have harbored actual bias, he has not proved that her state of mind prevented her from deciding the case impartially. At the hearing to reconstruct the voir dire record, neither the original presiding judge nor the parties recalled any indication of actual bias by the juror in question.

Accordingly, the trial court did not err in impaneling the juror with a felony conviction.

B.

Ellis also argues that the juror with a...